An appeal provision of the kind that I have recently referred to (see blogs for R v Jackson, 10 December 2007, and R v Grover, 23 November 2007) was the subject of today’s decision by the New Zealand Supreme Court in Owen v R [2007] NZSC 102 (11 December 2007).
The focus is on the meaning of s 385(1)(a) of the Crimes Act 1961[NZ]; I set out the provision in its context, which will be familiar in many jurisdictions:
“(1) On any appeal … the Court of Appeal or the Supreme Court must allow the appeal if it is of opinion—
(a) That the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; or
(b) That the judgment of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or
(c) That on any ground there was a miscarriage of justice; or
(d) That the trial was a nullity—
and in any other case shall dismiss the appeal:
Provided that the Court of Appeal or the Supreme Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”
So, in Owen the Court was concerned with only the first of the four grounds on which an appeal must be allowed. This, like the others, is – at least on a literal meaning - subject to the “proviso” in the concluding part of the subsection; however, that literal meaning is illogical, as was pointed out in Sungsuwan v R [2006] 1 NZLR 730; (2005) 21 CRNZ 977 (SC) per Tipping J (who delivered the Court’s judgment in the present case) at para 114, and the proviso has therefore been held not to apply to subsection (1)(a).
An almost literal meaning was, nevertheless, applied to subsection (1)(a) itself in Owen. I say “almost”, because the Court held that the phrase “or cannot be supported having regard to the evidence” is redundant, best seen as simply an example of what an unreasonable verdict would be. That leaves the essential part of paragraph (a) as “That the verdict of the jury should be set aside on the ground that it is unreasonable”.
At para 17 the Court held:
“…There is, in the end, no need to depart from the language of Parliament. The question is whether the verdict is unreasonable. That is the question the Court of Appeal must answer. The only necessary elaboration is that … a verdict will be unreasonable if, having regard to all the evidence, the jury could not reasonably have been satisfied to the required standard that the accused was guilty. We do not consider it helpful to employ other language such as unsafe, unsatisfactory or dangerous to convict. These words express the consequence of the verdict being unreasonable. They should not be used as tests in themselves.”
Also rejected was the “lurking doubt” test, used in English law and referred to by the Privy Council, for example in Dookran v The State (Trinidad and Tobago), blogged here 13 March 2007.
Unexplored in this decision is the question of how sure must the appellate court be that the jury’s verdict was unreasonable? Does the appellate court have to be sure (whatever that means) that the jury could not reasonably have been satisfied to the required standard that the accused was guilty? Or, must the appellate court allow an appeal if it thinks it more likely than not that the jury could not reasonably have been satisfied to the required standard that the accused was guilty? Or, again, must the appellate court allow the appeal if it has a reasonable doubt that the jury could not reasonably have been satisfied to the required standard that the accused was guilty? The statutory language does not clarify this, it simply says the appellate court “must allow the appeal if it is of opinion” that the relevant paragraph applies.
The Supreme Court did adopt some general points from the Court of Appeal joint judgment in R v Munro [2007] NZCA 510 (referred to here in the blog entry for Grover, 23 November 2007):
“(a) The appellate court is performing a review function, not one of substituting its own view of the evidence.
(b) Appellate review of the evidence must give appropriate weight to such advantages as the jury may have had over the appellate court. Assessment of the honesty and reliability of the witnesses is a classic example.
(c) The weight to be given to individual pieces of evidence is essentially a jury function.
(d) Reasonable minds may disagree on matters of fact.
(e) Under our judicial system the body charged with finding the facts is the jury. Appellate courts should not lightly interfere in this area.
(f) An appellant who invokes s 385(1)(a) must recognise that the appellate court is not conducting a retrial on the written record. The appellant must articulate clearly and precisely in what respect or respects the verdict is said to be unreasonable and why, after making proper allowance for the points made above, the verdict should nevertheless be set aside.”
The Supreme Court also endorsed, at para 14, the following passage from Munro:
“The correct approach to a ground of appeal under s 385(1)(a) is to assess, on the basis of all of the evidence, whether a jury acting reasonably ought to have entertained a reasonable doubt as to the guilt of the appellant. We consider the word “ought” is a better indication of the exercise to be conducted than the word “must” used in Ramage [1985] 1 NZLR 392. It emphasises the task that the Court has to perform. This test also, in our view, accords with the statutory wording.
“We consider that McLachlin J’s comments in R v W(R) [1992] 2 SCR 122 encapsulate the main elements of the test. The test is not whether the verdict is one that no jury could possibly have come to. A verdict will be … unreasonable where it is a verdict that, having regard to all the evidence, no jury could reasonably have reached to the standard of beyond reasonable doubt. The Court must always, however, keep in mind that it is not the arbiter of guilt, and that reasonable minds might disagree on findings of fact – see the comments in Biniaris [2000] 1 SCR 381 and those in Mareo [1946] NZLR 660.”
After considering the evidence and submissions in the present case, the Court concluded:
“…We are, however, not persuaded that the Court of Appeal erred in concluding that the appellant had failed to demonstrate that the verdicts were unreasonable. In short, having regard to all the evidence, the jury could reasonably have been satisfied to the required standard that the appellant was guilty on all counts. The appeal must therefore be dismissed.”
This illustrates the need for the appellant to “persuade” the Supreme Court that the Court of Appeal was wrong, and the need for the appellant to “demonstrate” to the Court of Appeal that the verdicts were unreasonable. One would think that if the Court of Appeal had a doubt about the reasonableness of the verdict, it would conclude that unreasonableness had been “demonstrated”, and that if the Supreme Court had that doubt about the reasonableness of the verdict, it would be “persuaded” that the Court of Appeal was wrong. The difficulty with this logic is that the general points (a) to (e) in Munro, above, give the appellate court reason not to promote its view of the evidence.
We might wonder whether the operative part of s 385(1)(a) should be the phrase “cannot be supported having regard to the evidence”, with the unreasonableness of a verdict being an instance of that. It’s now a bit too late for that interpretation, but it would have put the focus on the evidence and the need for proof of guilt to the criminal standard; the appellate court would normally acknowledge the jury’s advantage in seeing and hearing the evidence and would perform its review function by examining the rationality of inferences and the completeness of the evidence. This approach would also indicate that a reasonable doubt in the mind of the appeal court would be sufficient to quash the conviction. There are, however, as the Court in Owen explained, historical reasons why the phrase "cannot be supported by the evidence" should be taken as a reference to what is really a question of law, namely whether there is evidence on each element of the relevant offence. This interpretation, appropriate from the perspective of history and precedent, has the result that the phrase rarely has any use, as cases where vital evidence is absent are unlikely to proceed to verdict.
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